Merchants' Mut. Tel. Co. v. Hirschman
| Decision Date | 16 February 1909 |
| Docket Number | No. 6,328.,6,328. |
| Parties | MERCHANTS' MUT. TELEPHONE CO. v. HIRSCHMAN. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, La Porte County; John C. Richter, Judge.
Action by Max Hirschman against the Merchants' Mutual Telephone Company. Judgment for plaintiff, and defendant appeals. Affirmed.Frank E. Osborn, William A. McVey, Lee L. Osborn, and Edwin J. Bower, for appellant. E. C. Weir, Philo Q. Doran, and Arthur Irwin, for appellee.
The defendant is a corporation owning, operating, and controlling a telephone system in Michigan City, Ind., and vicinity, and the plaintiff is the owner of certain (described) property in said city, located on the north side of Fifth street and adjoining an alley on the east. The plaintiff is the owner in fee to the center of the street, subject to the easement of the public therein. Situated upon said real estate adjoining the line of said street and alley is a two-story brick building occupied by the plaintiff as a place of business and residence-the lower floor being used for a saloon business. The main entrance to the saloon is in the southeast corner of said building, and opens out to and at the point where the alley intersects Fifth street. After setting out the above facts it is alleged, in substance, that the defendants have erected and now maintain a large pole on the premises of the plaintiff at said intersection; that the pole is in close proximity and directly in front of the main entrance of said saloon, thereby obstructing the view from said building, and the ingress and egress to said saloon, and otherwise interfering with the reasonable and beneficial use and enjoyment of said premises; that attached to said poles are divers cross-arms, which extend over and upon said premises, and that each carry a number of wires operated by, and belonging to, said defendants, running north and south over and upon the east part of said premises; that the maintenance of said cross-arms and wires over and upon the premises of the plaintiff is, and always had been, without the consent or license of the plaintiff, and without compensation; that on or about the 1st day of September, 1902, the plaintiff notified and requested the defendant to remove said pole and wires and cross-arms, but that the defendant neglected and refused, and still neglects and refuses, to move said pole to the plaintiff's damage, etc. The second paragraph of amended complaint, in addition to the allegations set out in the first, alleges that the maintenance of said poles and wires and cross-arms constitutes a continuing nuisance and a detriment to the property of the plaintiff, and that he is without adequate remedy at law. Upon the foregoing facts the plaintiff seeks to have said alleged nuisance abated and to recover damages. A separate demurrer for want of facts was overruled to each paragraph of amended complaint, and appellant answers (1) in general denial; and (2) that it is a corporation operating under a franchise granted by the common council of Michigan City for the construction and operation of its lines; that the pole in question was erected, prior to the time plaintiff became possessed of said lot, under the authority and franchise aforesaid; that said pole, cross-arms, etc., were a part of, and necessary to, the successful operation of its said system. A demurrer was sustained to the second paragraph of answer. The cause was tried by jury, resulting in a general verdict in favor of appellee, and assessing his damages at $240. With the general verdict the jury returned answers to interrogatories, and over a motion for judgment non obstante veredicto and for a new trial, judgment was rendered on the verdict in favor of appellee. These rulings are assigned as error.
As it is disclosed by the record that the said pole has been removed since the filing of this suit, the only question for consideration is that of damages. The appellant insists that the demurrer should have been sustained to the first paragraph of amended complaint, on the ground that the theory of the amended complaint is that said pole as located constituted a nuisance. It is also insisted (1) that, in absence of an averment to the contrary, the presumption would be that said pole was erected and maintained with the consent and permission of the common council; (2) that the reasonable use of the street of a city by a telephone system is not a new and additional servitude for which the abutting owner is entitled to compensation; and (3) that the complaint does not show by direct allegation that the plaintiff suffered injuries beyond other property owners owning land abutting on the highways of Michigan City, or in any wise differing from that suffered by the community at large. The presumption which it is claimed arises from the absence of the above averments does not render the complaint bad. Whether the particular use of the city street is a reasonable one is a question of fact. The allegation that “the said pole is in close proximity and directly in front of the main entrance of said saloon, thereby obstructing the view from said building and the ingress and egress to said saloon, and otherwise interfering with the reasonable and beneficial use and enjoyment of said premises,” is, we think, when taken with the other allegations, sufficient to charge that the plaintiff is peculiarly damaged, and in a way not suffered by other members of the community at large.
It is claimed, further, by appellant that if the pole was so set as to constitute an additional burden on appellee's land, then so setting it was an appropriation of appellee's land for which he would be entitled to resort to his statutory remedy for the assessment of damages. Burns' Ann. St. 1901, § 893 et seq. If the pole was so set as to be an additional burden, it would not change the character of the act in so setting it from what would in law be a nuisance to an appropriation of the property. The pole in question, located as it was, was not a permanent injury to appellee's premises. Muncie Pulp Co. v. Keesling, 166 Ind. 479, 76 N. E. 1002. If it were an appropriation, appellee would have his choice of remedies, either for damages, or under the statute. Section 893 et seq., supra.
Referring to the recognized rule of pleading “that allegations must be stronger than to merely suggest an inference; that they must be so strong as to enforce the inference which is necessary (Erwin v. Central Union Telephone Co., 148 Ind. 365, 46 N. E. 667, 47 N. E. 663)-appellant asserts that the allegation “that the said pole is in close proximity and directly in front of the main entrance of said saloon, thereby obstructing the view from said building and the ingress and egress to said saloon,” etc., is indirect, and does not show, nor does the complaint show, that the plaintiff suffered injury beyond other property owners owning land abutting on the highways of Michigan City in any wise differing from that suffered by the community at large. The allegations set out should be considered with other averments set out, viz., “that the said defendant has erected and now maintains a large pole at the point in the premises of this plaintiff where the said alley intersects said Fifth street,” and “that the main entrance to said saloon is in the southeast corner of said building, said entrance opening out to and at the point where said alley intersects said Fifth street.” These allegations are not made by way of recital. They are positive averments. The plaintiff has the right to use his building for business purposes. The injury to plaintiff, the interference with the free access of the public to his place of business, is not suffered by the public generally. The injury to plaintiff from loss of business, depreciating the rental value of his property, is peculiar to him. Coburn v. New Telephone Co., 156 Ind. 90, 59 N. E. 324, 52 L. R. A. 671;Terre Haute, etc., R. Co. v. Bissell, 108 Ind. 113, 9 N. E. 144;Waltman v. Rund, 94 Ind. 225;Adams v. Chicago, etc., R. Co., 39 Minn. 286, 39 N. W. 629, 1 L. R. A. 493, 12 Am. St. Rep. 644.
Appellant argues that the amended second paragraph of the complaint is bad, because it states no amount of damages, but asks that appellant be enjoined from maintaining its pole as located, and that, the appellee's grantor having deferred action until the rights of the public have intervened, he (appellee) cannot maintain an action for either ejectment, injunction, or successive actions for trespass. If this paragraph states facts sufficient to entitle appellee to an injunction, it is not bad for failure to ask damages. The rights of the public in a telephone system cannot prevent the removal of a pole located in an improper place. The location of the pole did not affect appellee's grantor. It became a nuisance to appellee after he had bought the ground and constructed his building. There was no acquiescence upon the part of said grantor in the condition following the construction of the building. The doctrine of acquiescence does not apply to a nuisance unless it has continued for 20 years. Sherlock v. Louisville, etc., R....
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